Saturday, June 24, 2017

I started this blog on October 30, 2005, and my website tracker Statcounter.com reports that, as of 11 AM today, this blog has now been visited more than 1,403,860 times. Another tracker that I used before, Sitemeter.com, reported that the average time per visit was over three minutes. Google Analytics, meanwhile, reports that visitors have come from more than 81 countries and that this blog has reached more than 4,195,620 page views.

Statcounter also reports for 2016 a daily average of 916 page views, 510 first-time visits, and 101 return visits.

Google Analytics and Statcounter work in different ways and thus report different statistics. With regards the average time of 3 minutes per visit, Jakob Nielsen says that 2 minutes is an eternity on the Internet. (Nielsen is the acknowledged guru of writing for the Internet.) Nielsen also says that the number of return visits is a better indicator of website or blog’s effectiveness, rather than the number of first-time (or absolute unique) visits.

The service I provide in this blog and in my Family Matters website is free legal information and Biblical counseling. As I told one person who e-mailed me, what is legal is not always Biblical, and what is Biblical is not always legal. In my website and blogs, however, what is Biblical will always take precedence.

Do not depend on “legal information” found in chat rooms or online forums

Despite this milestone for this blog, three things sadden me:

One, I have stumbled upon chat rooms or online forums for OFWs, single parents, etc. and I am amazed at the tremendous amount of misinformation about legal matters I found in these forums. The problem is that people in these chat rooms, rather than inquiring from lawyers, rely on each other and on people who pretend to know the law. It does not matter whether a person has gone to law school or does good research on legal topics. Answering people’s questions about legal matters is considered as “practice of law” (as the Supreme Court ruled in the case involving the late Sen. Rene Cayetano and former COMELEC chairman Christian Monsod). The practice of law is reserved only for those who have passed the bar exams and are in good standing with the Integrated Bar of the Philippines.

If you do have legal questions, you should inquire from lawyers directly or from government offices. I have listed in a tab below this blog’s title graphic the contact information of government offices where you can get free legal assistance.For example, you can ask for free legal help from the Department of Justice Action Center (DOJAC). It acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

You can also try asking for free legal help or information from the following:

Integrated Bar of the Philippines (IBP) chapter offices in your town or city, usually located in the Hall of Justice

Two, the most visited page of this blog is that on adultery, concubinage, and psychological violence, with more than 292,000 visits. The other pages with a high number of visits are those dealing with support for an abandoned woman and her children (more than 154,000 visits), annulment or declaration of nullity of marriage, entertainer Amy Perez’s failed petition to have her marriage to Brix Ferraris declared void, and custody battles over children.

Three, there are more people who visit this blog rather than my Salt and Light blog on how to build strong relationships, marriages, and families. Compared to this blog, my SL blog is limping along with only 54,000-plus visitors since December 2005. It seems that there are more people who want to know about how to end their marriage than people concerned about building stronger marriages.

I remember Valentine’s Day twelve years ago. I received an e-mail from a woman, competent and highly successful in her profession. The problem was, her professional success had led to the breakdown of her marriage because her husband had become totally insecure. The question she desperately asked me was, “Is there hope for my marriage?”I spent the whole afternoon of that Valentine’s Day answering the e-mail, assuring her that yes, there was still hope for her marriage.

I also hope that that those of you going through various marital difficulties will try to get hold and watch Kirk Cameron’s movie on relationships; you can watch the YouTube trailer above. (Read more About FIREPROOF; surf to the FIREPROOF blog).

About FIREPROOF, the movie

At work, inside burning buildings, Capt. Caleb Holt lives by the old firefighter’s adage: Never leave your partner behind. At home, in the cooling embers of his marriage, he lives by his own rules. Growing up, Catherine Holt always dreamed of marrying a loving, brave firefighter...just like her daddy. Now, after seven years of marriage, Catherine wonders when she stopped being "good enough" for her husband. Regular arguments over jobs, finances, housework, and outside interests have readied them both to move on to something with more sparks. As the couple prepares to enter divorce proceedings, Caleb's father challenges his son to commit to a 40-day experiment: "The Love Dare." Wondering if it's even worth the effort, Caleb agrees-for his father's sake more than for his marriage. When Caleb discovers the book's daily challenges are tied into his parents' newfound faith, his already limited interest is further dampened. While trying to stay true to his promise, Caleb becomes frustrated time and again. He finally asks his father, "How am I supposed to show love to somebody who constantly rejects me?" When his father explains that this is the love Christ shows to us, Caleb makes a life-changing commitment to love God. And so with God's help he begins to understand what it means to truly love his wife. But is it too late to fireproof his marriage? His job is to rescue others. Now Caleb Holt is ready to face his toughest job ever...rescuing his wife’s heart.

Ruling: The escalation clause is void because it granted China Banking the power to impose an increased rate of interest without a written notice to the Juico couple and their written consent.

Definition: “Escalation clauses refer to stipulations allowing an increase in the interest rate agreed upon by the contracting parties.

Doctrine: “There is nothing inherently wrong with escalation clauses which are valid stipulations in commercial contracts to maintain fiscal stability and to retain the value of money in long term contracts.”

“But an escalation clause is void where the creditor unilaterally determines and imposes an increase in the stipulated rate of interest without the express conformity of the debtor.”

Background facts

Spouses Ignacio and Alice Juico got a loan from China Banking Corporation as evidenced by 2 promissory notes. The loan was secured by a Real Estate Mortgage over the Juico couple’s property located at White Plains, Quezon City. The notes contained the following escalation clause stating that the interest rate would change every month based on the prevailing market rate:

“I/We hereby authorize the CHINA BANKING CORPORATION to increase or decrease as the case may be, the interest rate/service charge presently stipulated in this note without any advance notice to me/us in the event a law or Central Bank regulation is passed or promulgated by the Central Bank of the Philippines or appropriate government entities, increasing or decreasing such interest rate or service charge.”

The Juicos failed to pay the monthly amortizations due. As of February 23, 2001, the amount due on the two promissory notes totaled P19,201,776.63 representing the principal, interests, penalties and attorney’s fees. The mortgaged property was sold at public auction, with China Bank as the highest bidder for the amount of Php 10,300,000.

After the auction, China Bank filed a collection case with the Regional Trial Court (RTC) of Makati City for Php 8,901,776.63, the amount of deficiency after applying the proceeds of the foreclosure sale to the mortgage debt.

In their Answer, the Juicos admitted their debt but claimed that the principal of the loan was already paid when the mortgaged property was extrajudicially foreclosed and sold for Php 10,300,000. They contended that should they be held liable for any deficiency, it should be only for Php 55,000 representing the difference between the total outstanding obligation of Php 10,355,000 and the bid price of Php 10,300,000.

At the trial, China Bank presented Ms. Annabelle Cokai Yu, its Senior Loans Assistant, as witness. She testified that she handled the account of the Juicos and assisted them in processing their loan application. She called them monthly to inform them of the prevailing rates to be used in computing interest due on their loan.

On cross-examination, Ms. Yu reiterated that the interest rate changes every month based on the prevailing market rate and she notified the Juicos of the prevailing rate by calling them monthly before their account becomes past due. When asked if there was any written authority from the Juicos to increase the interest rate unilaterally, Ms. Yu answered that they signed a promissory note indicating that they agreed to pay interest at the prevailing rate.

In defense, Ignacio Juico testified that before the loan’s release, he was required to sign a blank promissory note and was informed that the interest rate on the loan will be based on prevailing market rates. On cross-examination, Ignacio testified that he is a Doctor of Medicine and also engaged in the business of distributing medical supplies. Ignacio admitted having read the promissory notes and that he is aware of his obligation under them before he signed them.

The RTC rules against the Juicos

The trial court held that:

(1) Ignacio’s claim that he signed the promissory notes in blank cannot negate or mitigate his liability since he admitted reading the Promissory Notes before signing them.

(2) Considering the substantial amount involved, it is unbelievable that the Juicos threw all caution to the wind and simply signed the documents without reading and understanding the contents.

The Court of Appeals affirms RTC ruling

The CA recognized China Bank’s right to claim the deficiency because the proceeds of the foreclosure sale were insufficient to cover the amount of the debt.

Also, the CA found as valid the stipulation in the promissory notes that interest will be based on the prevailing rate. It noted that the parties agreed on the interest rate which was not unilaterally imposed by the bank but was the rate offered daily by all commercial banks as approved by the Monetary Board. Having signed the promissory notes, the Juicos are bound by the stipulations.

Supreme Court rules partly for the Juicos and partly for China Bank

The Juico couple appealed to the Supreme Court. According to the Juicos, the issues are:

(1) The interest rates imposed by China Bank are not valid as they were not by virtue of any law or Bangko Sentral ng Pilipinas regulation or any regulation that was passed by an appropriate government entity. They insist that the interest rates were unilaterally imposed by the bank and thus violate the principle of mutuality of contracts.

(2) The escalation clause in the promissory notes does not give China Bank the unbridled authority to increase the interest rate unilaterally. Any change must be mutually agreed upon.

The Court’s ruling in favor of the Juicos: (1) Escalation clauses are not necessarily void. These clauses are valid stipulations in commercial contracts to maintain fiscal stability and to retain the value of money in long term contracts.

(2) The Juicos were not coerced into signing the promissory notes and they did not protest the new rates imposed on their loan. Nevertheless, an escalation clause “granting the creditor an unbridled right to adjust the interest independently and upwardly, completely depriving the debtor of the right to assent to an important modification in the agreement” is void. A stipulation of this nature violates the principle of mutuality of contracts under Article 1308 of the New Civil Code.

(3) An escalation clause is void where the creditor unilaterally determines and imposes an increase in the stipulated rate of interest without the express conformity of the debtor.

(4) Changes in the rate of interest for loans under an escalation clause must be the result of an agreement between the parties.

(5) China Bank should have given a detailed billing statement based on the new imposed interest with corresponding computation of the total debt. The statement would have enabled the Juicos to make an informed decision. China Bank should also have provided an appropriate form to be signed by the Juicos to indicate their conformity to the new rates.

Courts have the authority to strike down or to modify provisions in promissory notes that grant the lenders unrestrained power to increase interest rates, penalties and other charges at the latter’s sole discretion and without giving prior notice to and securing the consent of the borrowers. This unilateral authority is anathema to the mutuality of contracts and enable lenders to take undue advantage of borrowers. Although the Usury Law has been effectively repealed, courts may still reduce iniquitous or unconscionable rates charged for the use of money. Furthermore, excessive interests, penalties and other charges not revealed in disclosure statements issued by banks, even if stipulated in the promissory notes, cannot be given effect under the Truth in Lending Act.

“I/We hereby authorize Banco Filipino to correspondingly increase the interest rate stipulated in this contract without advance notice to me/us in the event a law should be enacted increasing the lawful rates of interest that may be charged on this particular kind of loan.”

Ruling:

Escalation clause void because: Circular No. 494 issued by the Monetary Board on January 2,1976, because said circular is not a law although it has the force and effect of law Escalation clause has no provision for reducing the stipulated interest “in the event that the applicable maximum rate of interest is reduced by law or by the Monetary Board” (de-escalation clause).

The promissory notes authorized PNB to increase the stipulated interest per annum “within the limits allowed by law at any time depending on whatever policy [PNB] may adopt in the future; Provided, that, the interest rate on this note shall be correspondingly decreased in the event that the applicable maximum interest rate is reduced by law or by the Monetary Board.” Philippine National Bank v. Court of Appeals, 273 Phil. 789 (1991)

Ruling:

Although the contract included a de-escalation clause, increases unilaterally imposed by PNB violated the principle of mutuality essential in contracts.

Escalation clause authorized PNB to raise the stipulated interest rate at any time without notice, within the limits allowed by law.

Ruling:

PNB did not secure the conformity of the borrower to the successive increases in the interest rate. The borrower’s assent to the increases cannot be implied from lack of response to the letters sent by PNB, informing them of the increases.

“The rate of interest and/or bank charges herein stipulated, during the terms of this promissory note, its extensions, renewals or other modifications, may be increased, decreased or otherwise changed from time to time within the rate of interest and charges allowed under present or future law(s) and/or government regulation(s) as the [PSBank] may prescribe for its debtors.”

Ruling:

Escalation clause void despite provision for de-escalation.

“The increase or decrease of interest rates under such clause hinges solely on the discretion of petitioner as it does not require the conformity of the maker before a new interest rate could be enforced. We also said that respondents’ assent to the modifications in the interest rates cannot be implied from their lack of response to the memos sent by petitioner, informing them of the amendments, nor from the letters requesting for reduction of the rates.”

SME Bank experienced financial difficulties in June 2001. To remedy the situation, Agustin and De Guzman sold 86.365% of the shares of stock of SME Bank to spouses Abelardo and Olga Samson. The Samson couple then became the principal shareholders of SME Bank, while Aurelio Villaflor, Jr. was appointed bank president.

Before the sale, Simeon Espiritu (Espiritu), then the general manager of SME Bank, met with all the employees of the head office and of the Talavera and Muñoz branches of SME Bank. He persuaded them to tender their resignations, with the promise that they would be rehired when they reapplied.

Relying on this representation, Elicerio, Ricardo, Fidel, Simeon, Jr., and Liberato tendered their resignations dated August 27, 2001. As for Eufemia, she first tendered a resignation letter and then a retirement letter dated September 2001. But as it turned out, the employees, except for Simeon, Jr., were not rehired.

The employees demanded the payment of their respective separation pays but their requests were denied. They then filed a Complaint with the National Labor Relations Commission (NLRC) – Regional Arbitration Branch No. III against SME Bank, the Samson couple, and Villaflor for unfair labor practice; illegal dismissal; illegal deductions; underpayment; and nonpayment of allowances, separation pay and 13th month pay. The employees later on amended their Complaint to include Agustin and De Guzman as respondents.

In defense, the Samson Group (the Samson couple, and Villaflor) contended that Elicerio, Ricardo, Fidel, and Liberato voluntarily resigned from their posts while Eufemia retired from her position. As their resignations and retirements were voluntary, they were not dismissed from their employment. In support of this argument, the Samson Group presented copies of their resignation and retirement letters, which were couched in terms of gratitude.

Labor Arbiter dismisses case against the Samson Group but rules against Agustin and De Guzman

(1) The buyer of an enterprise is not bound to absorb its employees, unless there is an express stipulation to the contrary.

(2) The employees were illegally dismissed, because they had involuntarily executed their resignation letters after relying on representations that they would be given their separation benefits and rehired by the new management. The arbiter ordered Agustin and De Guzman to pay the complainants’ separation pay.

NLRC ruling: mere change in management not a valid ground to terminate the employees

Dissatisfied with the judgment, Elicerio and the other employees appealed to the NLRC. Agustin and De Guzman also appealed. The employees questioned the labor arbiter’s failure to award backwages. Agustin and De Guzman, on the other hand, contended that they should not be held liable for the payment of the employees’ claims.

The NLRC found that there was only a mere transfer of shares – and therefore, a mere change of management – from Agustin and De Guzman to the Samson Group. As the change of management was not a valid ground to terminate respondent bank employees,

(1) Elicerio and the other employees were illegally dismissed;

(2) Agustin, De Guzman, and the Samson Group should be held jointly and severally liable for the employees’ separation pay and backwages.

(1) Elicerio and the other employees are entitled to separation pay, full backwages, moral damages, exemplary damages and attorney’s fees. They tendered resignation letters only because they were led to believe that, upon reapplication, they would be reemployed by the new management. They had no real intention of leaving their posts.

While resignation letters containing words of gratitude may indicate that the employees were not coerced into resignation, this fact alone is not conclusive proof that they intelligently, freely and voluntarily resigned. To rule that resignation letters couched in terms of gratitude are, by themselves, conclusive proof that the employees intended to relinquish their posts would open the floodgates to possible abuse.

In order to withstand the test of validity, resignations must be made voluntarily and with the intention of relinquishing the office, coupled with an act of relinquishment. Therefore, in order to determine whether the employees truly intended to resign from their respective posts, the Court cannot merely rely on the tenor of the resignation letters, but must consider the totality of circumstances.

(2) Contrary to SME Bank’s argument, there was no transfer of the business establishment but merely a change in the new majority shareholders and new management of the corporation. This change is not a just or authorized cause for termination of employment under the Labor Code.

SME Bank continued to be the employer of respondent employees notwithstanding the equity change in the corporation. A corporation has a personality separate and distinct from that of its individual shareholders or members. Thus, a change in the composition of its shareholders or members would not affect its corporate liabilities.

As the employer of the illegally dismissed employees before and after the equity transfer, SME Bank is liable for the satisfaction of their claims.

Corporate officers are not personally liable for their official acts. A corporation, by legal fiction, has a personality separate and distinct from its officers, stockholders, and members.

Exception

Corporate directors and officers are solidarily liable with the corporation if they acted with malice or in bad faith in terminating the employees.

Agustin and De Guzman are corporate directors who acted in bad faith. They may be held solidarily liable with SME Bank for the satisfaction of the employees’ lawful claims.

The dismissal of Elicerio and the other employees was done in bad faith. Motivated by their desire to sell their shares of stock to the Samson couple, Agustin and De Guzman agreed to and later implemented the precondition in the Letter Agreements as to the termination or retirement of SME Bank’s employees. But instead of going through the proper procedure, the bank manager induced the employees to resign or retire from their respective employments, while promising that they would be rehired by the new management. Fully relying on that promise, they tendered courtesy resignations or retirements and eventually found themselves jobless. Clearly, this sequence of events constituted a gross circumvention of labor laws and a violation of the employees’ constitutionally guaranteed right to security of tenure.

Ruling: Pabriga and his co-workers were GMA7’s regular employees,
not project employees, and they were illegally dismissed.

Definitions:

“Regular employees perform activities that are usually necessary
or desirable in the employer’s usual business or trade.”

“Project employees perform activities that may be usually necessary
or desirable in the usual business or trade of the employer.” (For
example, a construction company engages in various projects like a twenty-five-storey
hotel in Makati; a residential condominium building in Baguio City; and
a domestic air terminal in Iloilo City. Employees who are hired for the
carrying out of one of these separate projects, the scope and duration
of which has been determined and made known to the employees at the time
of employment, are properly treated as “project employees,”
and their services may be lawfully terminated at completion of the project.)

“Project employees perform activities that may not be usually necessary
or desirable in the usual business or trade of the employer.” (For
example, a steel company engages in fish production or cultivation
of vegetables.)

A project employee or a member of a work pool may acquire the status of a regular
employee.

Background facts

Carlos Pabriga, Geoffrey Arias, Kirby Campo, Arnold Lagahit, and Armando Catubig worked as television technicians for GMA7 in the late 1990s. Their work
included manning of technical operations center and acting as transmitter/VTR
men, maintenance staff, and cameramen. They were repeatedly rehired in several
fixed term contracts from 1996 to 1999.

Pabriga and his co-workers originally filed in July 1999 a complaint for non-payment
of benefits with the National Labor Relations Commission (NLRC). Later on, they
amended their complaint by raising the issues of unfair labor practice, illegal
dismissal, damages, and attorney’s fees.

Pabriga and his co-workers claimed that they were GMA7's regular employees.
On the other hand, GMA7 claimed that they were merely hired as
“pinch-hitters” on fixed term contracts.

Labor Arbiter rules against Pabriga and his co-workers

The Labor Arbiter dismissed the complaint for illegal dismissal and unfair
labor practice, but held GMA 7 liable for 13th month pay.

The NLRC ruled that Pabriga and his co-workers were regular employees with respect
to the particular activity to which they were assigned, until it ceased to exist.
As such, they were entitled to payment of separation pay computed at one month
salary for every year of service.

The NLRC also ruled that Pabriga and his co-workers were entitled to 13th month
pay, night shift differential, and service incentive leave pay.

GMA7 elevated the case to the Court of Appeals through a petition for certiorari.
On September 8, 2006, the CA denied the petition for lack of merit.

Supreme Court ruling: Pabriga and his co-workers were regular employees, not
project employees, and they were illegally dismissed

The Supreme Court affirmed the findings of the NLRC and the CA that Pabriga
and his co-workers were GMA7’s regular employees and that they were illegally
dismissed.The Court ruled:

(1) Pabriga and his co-workers were not project employees because the manning
of the operations center to air commercials, acting as transmitter/VTR men,
maintaining the equipment, and acting as cameramen were not undertakings separate
or distinct from the business of a broadcasting company.

(2) Even if Pabriga and his co-workers are to be considered as project employees,
they attained regular employment status because GMA7 continuously rehired them.(3) GMA7 did not report the completion of its projects and the dismissal of
Pabriga and his co-workers in its finished projects to the nearest Public Employment
Office as required by Policy Instruction No. 20 of the Department of Labor and
Employment. Based on jurisprudence, the failure of an employer to report to
the nearest Public Employment Office the termination of its workers’ services
every time a project or a phase is completed indicates that the workers are
not project employees.

(4) GMA7’s
practice of hiring and rehiring of workers on fixed terms, without end, is unjustifiable.

Difference between regular employee and project employee

A regular employee performs activities
that are usually necessary or desirable in the employer’s usual business
or trade.

A project employee performs activities that may or may
not be usually necessary or desirable in the usual business or trade of
the employer.

The services of the project employees are legally and automatically terminated
when the project ends or is completed.

The principal test for determining whether employees are “project employees”
is two-fold:

(1) Is the employee assigned to carry out a specific project or undertaking?

(2) Is the completion or termination of the project specified or determined
at the time the employee was engaged for that project?

Definition of “project”

The term “project” must be properly defined in order to safeguard
the rights of workers against the arbitrary use of the word “project”
by employers to prevent them from attaining the status of regular employees.

(1) The “project” would ordinarily have some relationship to the
usual business of the employer.

For example, a construction company ordinarily carries out two or more [distinct]
identifiable construction projects: a twenty-five-storey hotel in Makati; a
residential condominium building in Baguio City; and a domestic air terminal
in Iloilo City. Employees who are hired for the carrying out of one of these
separate projects (the scope and duration of which has been determined and made
known to the employees at the time of employment), are properly treated as “project
employees,” and their services may be lawfully terminated at completion
of the project.

(2) Exceptionally, the “project” job or undertaking is not within
the regular business of the employer. The job or undertaking is identifiably
separate and distinct from the ordinary or regular business operations of the
employer. The job or undertaking also begins and ends at determined or determinable
times. For example, a steel-making company, for one reason or another, undertakes
the breeding and production of fish or the cultivation of vegetables.

Examples of regular employee and a project employee

Although essentially a telephone company, PLDT maintains its own accounting
department to which Ylagan was assigned. PLDT was not able to prove that
accounting duties were distinct, separate and identifiable from its usual
undertakings.

The private respondent was hired to repair furnaces, which are needed
by San Miguel Corporation to manufacture glass, an integral component
of its packaging and manufacturing business.

San Miguel Corporation is not engaged in the business of repairing furnaces.
Although the activity was necessary to enable it to continue manufacturing
glass, the necessity for the repairs arose only when a furnace reached
the end of its life or operating cycle.

Private respondent is therefore a project employee.

A project employee or a member of a work pool may acquire the status of a regular
employee when the following concur:

(1) The project employee is continuously rehired even after a project has ended;
and

(2) The alleged project employee performs tasks are vital, necessary, and indispensable
to the usual business or trade of the employer.

Difference between project employment and fixed period/fixed term employment

GMA7 interchangeably characterized Pabriga and his co-workers’s service
as project employment and fixed term employment. But these types of employment are not
the same.

Project employment

The employee’s services are coterminous with the project.
The employment may, in fact, last for more than a year, depending on the
needs or circumstances of the project.

Fixed period/fixed term employment

Duration of employment is agreed upon by the parties.

The decisive determinant in fixed-term employment is not the activity that the
employee is called upon to perform but the day certain agreed upon by the parties
for the employment relationship to commence and terminate.

The use of fixed-term employment is subject to abuse by employers who want to
deprive workers of their security of tenure. In this situation, the fixed term
or period should be struck down as contrary to public policy or morals.

Indications
or criteria under which “term employment” does not circumvent the
law on security of tenure:

(1) The fixed period of employment was knowingly and voluntarily agreed upon
by the parties without any force, duress, or improper pressure being brought
to bear upon the employee and absent any other circumstances vitiating his consent;
or

(2) The employer and the employee dealt with each other on more or less equal
terms with no moral dominance exercised by the former or the latter.

To prove the fixed term contracts, GMA7 presented cash disbursement vouchers
signed by Pabriga and his co-workers, stating that they were merely hired as
“pinch-hitters.” The
Court observed that Pabriga and his co-workers were in no position to refuse
to sign these vouchers, as refusal would entail not getting paid for their services.
Plainly, Pabriga and his co-workers as “pinch-hitters” cannot be
considered to be on equal footing as GMA7 in the negotiation of their employment
contract.

Line spacing should be 120-145% of the point size. In word processors,
use the “Exact” line-spacing option to achieve this. The default
single-line option is too tight; the 1½-line option is too loose.

The average line length should be 45-90 characters (including spaces).

Butterick’s view on point size for pleadings, motions, and court documents:

While courts often require text to be set at 12 point—and sometimes larger—it’s
not the most comfortable size for reading. If you compare a court filing with
the average book, newspaper, or magazine, you’ll notice that the text
in the filing is larger.

When you’re not bound by court rules, don’t treat 12 point as the
minimum. Try sizes down to 10 point, including intermediate sizes like 10.5
and 11.5 point—half-point differences are meaningful at these sizes.

StyleWriter 4 graphs your style and sentence variety, and identifies
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StyleWriter 4 is widely used in the US federal government (for example,
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Yet
the legal profession is still largely unaware of how important page
layout can be. On the whole, we're still stuck in the ugly typewriting
mode: we still tend to rely on all-caps text and underlining as means of
emphasis. Professional typographers I've spoken with are bewildered by
our naiveté about the importance of not just what words appear on the
page, but how they appear.

Use typefaces that were designed for books. Both the Supreme Court and the Solicitor General use Century.

Any
face with the word “book” in its name is likely to be good for legal
work. Baskerville, Bembo, Caslon, Deepdene, Galliard, Jenson, Minion,
Palatino, Pontifex, Stone Serif, Trump Medieval, and Utopia are among
other faces designed for use in books and thus suitable for brief-length
presentations.

A plain English document reflects thoughtful design choices. The right design choices make a document easier to read and its information easier to understand. The wrong design choices can make even a well-written document fail to communicate.

Typography (do not use all caps; use serif typefaces; mixing two serif or two sans serif typefaces can look like a mistake; do not use more than two typefaces in any document, not including the bold or italic versions of a typeface.)

Persuasion includes looking good on paper — literally. Persuasion is the
backbone of a lawyer’s job. Attorneys who are able to appeal to their audience
will establish a measure of credibility, ethos, that will enhance the overall
effectiveness of the argument. Lawyers are taught to use every part of a document
as an opportunity to persuade. Textual design of the document should be approached
with the same attitude, i.e., how can it help the lawyer persuade an audience?

Prof. Robbins on point size and court rules:

her legal
There is no definitive scientific answer, however, to whether court rules should
require 12-point or 14-point font, given a page that is 8.5 inches by 11 inches.
The studies unfortunately did not test the relative legibility of font sizes
using lines of text closer to what normally appears on the standard paper size
used for most legal documents. There is some discussion that larger font sizes
such as 14-point Roman cause longer fixation pauses, which in turn slows reading.
Dr. Tinker took care to caution that there was no easy way to draw a final conclusion
as to optimal type size because other factors contribute to the equation, such
as line length and line spacing. Nevertheless, experts in the field recommend reserving 14-point and larger sizes for headings as opposed to blocks of text.
(page 122)

On line length:

The optimal line length depends on the size of the type. Unfortunately, the
standard 6.5 inches of 12-point type in common use, that is, one-inch margins
on the left and right sides of an 8.5-inch-wide page, decreases legibility by
more than 3%. Based on those studies, more modern publications claim that the
ideal line length for 12-point type should range from 2.75 to 4 inches. Modern
examples of text using narrow columns for printing include newspapers and online
legal research documents from Lexis/Nexis or Westlaw. (pages 122-123)

Prof. Robbins includes in her study the typographic requirements of various US courts.

The Supreme Court’s “Efficient Use of Paper Rule” became
effective as of January 1, 2013. Covered by the Rule are pleadings, motions,
and similar papers; all decisions, resolutions, and orders issued by courts
and by quasi-judicial bodies under the administrative supervision of the
Supreme Court; reports submitted to the courts, and transcripts of stenographic
notes. (Please read also A.M. No. 10-3-7-SC Proposed Rules on E-Filing.)

The Rule requires all pleadings and court documents to be written in:

single space with
a one-and- a-half space between paragraphs,

using an easily readable font
style of the party's choice,

of 14-size font, and

on a 13-inch by 8.5-inch
white bond paper.

The Rule also requires a left hand margin of 1.5 inches from the edge;
an upper margin of 1.2 inches from the edge; a right hand margin of 1.0
inch from the edge; and a lower margin of 1.0 inch from the edge.

The Supreme Court justifies the Rule by the following reasons:

(1) To produce 500 reams of paper, twenty trees are cut and 100,000 liters
of water are used, water that is no longer reusable because it is laden
with chemicals and is just released to the environment to poison our rivers
and seas;

2) The judicial system needs to cut the use of excessive quantities of
costly paper, save our forests, avoid landslides, and mitigate the worsening
effects of climate change that the world is experiencing;

(3) The judiciary can play a big part in saving our trees, conserving
precious water, and helping mother earth.

Save forests, use Plain English

“In 1992, the Sierra Club estimated that the average California
lawyer used a ton of paper each year, a hefty pile indeed in a state that
had about 137,000 lawyers. The environmental group urged the state’s
Judicial Council to enact a rule requiring use of recycled paper in documents
filed in the courts, a move that the group estimated would save more than
6,000 trees annually.

“Two days later, a Los Angeles Times reader penned a letter-to-the-editor
with a one-sentence solution of his own. ‘If the Sierra Club would
like to save whole forests rather than just a few thousand trees,’
he wrote, ‘I suggest that they encourage lawyers to use plain English.’”

“The letter writer was David Mellinkoff, professor emeritus at
the UCLA School of Law and the acknowledged dean of the legal profession’s
Plain English movement.”

(1) Soft copies of all Supreme Court-bound papers and their annexes must be
submitted simultaneously with the hard copy if by compact disc (CD) or within
twenty-four (24) hours from the filing of the hard copy if by e-mail. It must
be understood, however, that the paper shall be deemed to have been filed on
the date and time of filing of the hard copy and not the soft copy.

(2) The soft copies must be in PDF and individually saved, as well as individually
attached to the e-mail, if applicable. The file name of the soft copy must be
the same as the document title. Examples: Petition for Review should have a
file name "Petition for Review.pdf" Annex A should have a file name "Annex A.
pdf"

(3) Soft copies submitted by e-mail must be addressed to the appropriate docketing
office:

Case Type

Docketing Office

E-mail Address (please verify)

Judicial cases

Judicial Records Office (JRO)

efilejro@sc.judiciary.gov.ph

Administrative
complaints
against personnel of the SC and its decentralized units (e.g., OCA, PHILJA,
JBC,
MCLEO)

Office of Administrative Services, SC (OAS-SC)

efile_oas_sc@sc.judiciary.gov.ph

Administrative complaints and
matters involving the Court of
Appeals, Sandiganbayan,
Court of Tax Appeals and lower courts, its justices, judges and personnel

Documentation Division, Legal Office, OCA

efile_oca@sc.judiciary.gov.ph

Administrative
matters
involving the SC
and its
decentralized
units

Office of the Clerk of Court En Banc

efile_occeb@sc.judiciary.gov.ph

Complaints against lawyers
and other bar matters

Office of the Bar Confidant (OBC)

efile_bar@sc.jucliciary.gov.ph

(4) The above docketing offices have the primary responsibility of ensuring
that all Supreme Court-bound papers have the corresponding soft copies. They
shall also be responsible for the safekeeping and archiving of the CDs.

(5) The e-mail shall use the following format:

(6) A CD or an e-mail shall contain only electronic documents pertaining to
one case. In the same manner, all soft copies of Supreme Court-bound papers
and their annexes pertaining to the same case shall be saved in one CD or attached
to one e-mail. In case the total file size of the electronic documents exceeds
the maximum size of the CD or the maximum size allowed for uploading by the
e-mail service being used by the filer, the electronic documents may be saved
in different CDs or e-mailed in batches, but must be clearly marked and/or follow
the format prescribed above.

(7) The filer shall also attach to the CD or the e-mail a verified declaration
that the pleading and annexes submitted electronically are complete and true
copies of the printed document and annexes filed with the Supreme Court. The
declaration shall use the following format:

The declaration attached to the CD must be original, while the declaration attached to the e-mail must be in PDF.

How to create a PDF; use a scanner to turn your paper documents to PDF

The Proposed Rules on (paperless) E-Filing require lawyers to submit their pleadings to the Supreme Court in PDF format. PDF stands for “Portable Document Format.” Adobe Acrobat is the standard for creating PDFs (where you can sign your documents online) but it is expensive.

A cheaper alternative is to use a scanner to turn your paper document to PDF. Late-model
printers from HP, Brother, Epson, etc. have scanners bundled with them. (If
you only have a generic scanner, you can download free software.) Here are the steps:

[2] Scan your documents page by page; if you have voluminous documents, scanning
them will be a tedious process.

You can monitor on your computer screen the scanning progress. Be careful with choosing the scanning type. If you choose a very high resolution, your PDF file will be extremely large. (If you are using Yahoo Mail, it has a limit of 25 megabytes for attachments.)

Tuesday, October 08, 2013

Ruling: The prosecution failed to prove under the “chain of custody” rule that the shabu allegedly seized from the accused by the police officers was the same shabu presented in court. The accused must therefore be acquitted.

Definitions:

(1) “Corpus delicti”: substance of the crime that proves a crime has actually been committed. In cases involving illegal drugs, the illegal drug itself is the corpus delicti. Its existence is vital for the court to find the accused beyond reasonable doubt.

(2) “Chain of custody” rule: there must be testimony about every link in the chain, from the moment the object seized was picked up to the time it is offered in evidence.

Every person who touched the object must describe

how and from whom it was received, where it was, and what happened to it while in the witness's possession,

the condition in which it was received, and

the condition in which it was delivered to the next link in the chain.

[1] A police team arrested Nicolas Gutierrez during a buy-bust operation on June 16, 2003 in Pasig City. The team allegedly seized from Gutierrez five centigrams of methylamphetamine hydrochloride (“shabu”) and drug paraphernalia.

Gutierrez was charged under R.A. 9165 with illegal sale of shabu and illegal possession of paraphernalia.

[2] Gutierrez pleaded “not guilty” during his arraignment. He claimed that he was merely having dinner with his family when four unidentified armed men barged into his house and arrested him.

[3] During the pre-trial, Gutierrez’s lawyer stipulated that:

a. the specimen (alleged shabu) exists,
b. the arresting officers requested for its examination,
c. a forensic chemist examined the specimen, and
d. it tested positive for methyl amphetamine hydrochloride.

[4] During the hearing, the fiscal presented some of the police officers who arrested Gutierrez. The officers identified the buy-bust money paid to Gutierrez and the shabu bought from him. PO1 Espares testified on the marking and eventual turnover of the seized sachet of alleged shabu to the investigator.

[5] The Pasig City Regional Trial Court found Gutierrez guilty of the illegal sale of shabu. But the RTC acquitted him of the charge of illegal possession of paraphernalia.

Gutierrez questioned the RTC’s ruling before the Court of Appeals. The CA affirmed the RTC’s decision. Gutierrez then brought his case up to the Supreme Court.

Issue:

The prosecution failed to show what happened to the shabu from the time the arresting officers gave it to the investigator up to its turnover for laboratory examination. The case records also do not show what happened to the shabu between its turnover by the chemist to the investigator and its presentation in court. Since the prosecution failed to prove that the shabu allegedly seized from Gutierrez was the same shabu presented in court, should Gutierrez be acquitted?

Supreme Court ruling:

Gutierrez should be acquitted because the prosecution failed to show an unbroken chain of custody of the alleged shabu.

Under Section 5, Article II of R.A. No. 9165, the elements necessary in a prosecution for the illegal sale of shabu are:

the identity of the buyer and the seller;

the object and the consideration; and

the delivery of the thing sold and the payment for it.

The prosecution must prove that the sale of shabu took place. The corpus delicti— the body or substance of the crime which establishes the fact that acrime has actually been committed—must also be presented in court. In cases involving narcotics, the illegal drug itself constitutes the corpus delicti of the offense. The existence of the illegal drug is vital for the court to find the accused guilty beyond reasonable doubt. The “chain of custody” rule ensures that unnecessary doubts on the identity of the evidence are removed.

In “Malillin v. People,” the Supreme Court explained how it expects the chain of custody or “movement” of the seized evidence to be maintained. There must be testimony about every link in the chain, from the moment the object seized was picked up to the time it is offered in evidence. Every person who touched the object must describe

how and from whom it was received, where it was, and what happened to it
while in the witness’s possession,

the condition in which it was received, and

the condition in which it was delivered to the next link in the chain.

These witnesses must describe the precautions taken to ensure that there had been

1. no change in the condition of the object and
2. no opportunity for someone not in the chain to possess the object.

PO1 Espares, one of the arresting officers, testified on the marking and eventual turnover of the allegedly seized sachet of shabu to the investigator. But no explanation was given on its custody in the interim – from the time it was turned over to the investigator to its turnover for laboratory examination. The case records also do not show what happened to the allegedly seized shabu between the turnover by the chemist to the investigator and its presentation in court.

Highlights of the Supreme Court’s decision / clarifications:

[1] The Supreme Court also ruled that Gutierrez should be acquitted because the arresting officers failed to comply with the rule on the custody and disposition of confiscated drugs (Section 21, Paragraph 1 of Article II of R.A. No. 9165). The officers did not physically inventory and take pictures of the shabu allegedly confiscated from Gutierrez. The officers also did not explain why they did not follow the rule.

[2] “Because of the built-in danger of abuse that a buy-bust operation carries, it is governed by specific procedures on the seizure and custody of drugs.”

“By the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great.”

“Courts must be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses.”

[3] What about the stipulations made by Gutierrez’s lawyer during the pre-trial?

These stipulations have no bearing on the question of chain of custody. The Court said:

These stipulations, which merely affirm the existence of the specimen, and the request for laboratory examination and the results thereof, were entered into during pre-trial only in order to dispense with the testimony of the forensic chemist and abbreviate the proceedings. That such is the intention of the parties is clear from the additional stipulations that the forensic chemist had no personal knowledge as to the source of the alleged specimen; and that the defense was reserving its right to object to the pieces of evidence marked by the prosecution. Clearly, the stipulations do not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left her possession.

To interpret the stipulations as an admission that appellant was the source of the specimen would be to bind him to an unceremonious withdrawal of his plea of not guilty – a reading not supported by the records which creates a dangerous precedent.

Ruling: Not every instance of laying of hands on a child constitutes the crime of child abuse under Republic Act No. 7610. If the accused intended to debase, degrade or demean the intrinsic worth and dignity of the child as a human being, then the accused can be charged for child abuse. But if that wasn’t the intention, then the accused should be charged under the Revised Penal Code.

[2] According to Bongalon’s version of the incident, Jayson and his older brother Roldan threw stones at his two minor daughters Mary Ann Rose and Cherrlyn. Jayson also burned Cherrlyn’s hair. Bongalon denied physically abusing or maltreating Jayson.

[3] The RTC found Bongalon guilty as charged and sentenced him to imprisonment of 6 years and 1 day to 8 years of prision mayor in its minimum period.

[4] Bongalon then appealed to the Court of Appeals. He contended that the RTC overlooked or disregarded material facts and circumstances in the records that would have led to a favorable judgment for him. He attacked the lack of credibility of the witnesses presented against him, citing the failure of the complaining brothers to react to the incident, which was unnatural and contrary to human experience.

The CA affirmed the conviction but modified the penalty to an indeterminate penalty of 4 years, 2 months and 1 day of prision correccional, as minimum term, to 6 years, 8 months and 1 day of prision mayor as the maximum.

[5] Bongalon brought his case up to the Supreme Court through a petition for certiorari under Rule 65 of the Rules of Court. He claimed that he was not guilty and that, even assuming that he was guilty, his liability should be mitigated because he had merely acted to protect his two minor daughters.

Supreme Court ruling

[1] As the RTC correctly found, Bongalon struck Jayson at the back with his hand and slapped Jayson on the face. But Bongalon’s acts did not constitute child abuse under RA 7610. He did not intend to debase the “intrinsic worth and dignity” of Jayson as a human being. He also did not intend to humiliate or embarrass Jayson.

Instead of child abuse, Bongalon should be convicted of slight physical injuries under Article 266 (1) of the Revised Penal Code.

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

[3] The records did not establish beyond reasonable doubt that Bongalon intended to debase the “intrinsic worth and dignity” of Jayson as a human being or that he had intended to humiliate or embarrass Jayson. Bongalon acted on the spur of the moment and in anger, being then overwhelmed by his fatherly concern for the personal safety of his minor daughters who had just suffered harm at the hands of Jayson and his older brother Roldan.

[4] The penalty for slight physical injuries is arresto menor, which ranges from one day to 30 days of imprisonment. Since Bongalon lost his reason and self-control in defending his daughters, he was entitled to the mitigating circumstance of passion. The proper penalty is 10 days imprisonment.

Other highlights of the Supreme Court ruling

[1] Under the well-recognized doctrine of “pro reo,” every doubt is resolved in favor of the accused. Courts should consider all possible circumstances in favor of the accused.

[2] Bongalon used the wrong remedy in questioning the CA’s affirmance of his conviction. His proper remedy was an appeal taken in due course. He should have filed a petition for review on certiorari. Instead, he wrongly brought a petition for certiorari.

Even if Bongalon’s petition is treated as having been brought under Rule 45 of the Rules of Court, it would still be defective due to its being filed beyond the period provided by law. Section 2 of Rule 45 requires the filing of the petition within 15 days from the notice of judgment to be appealed. Bongalo received a copy of the CA’s decision on July 15, 2005, but filed the petition only on September 12, 2005.

Despite Bongalon’s procedural mistakes, the Supreme Court did not dismiss his petition outright but treated it as an appeal filed on time. The Court said that it did not want to be seen as “an unfeeling tribunal of last resort willing to sacrifice justice in order to give premium to the rigidity of its rules of procedure.” The Court explained:

“The procedural transgressions of the petitioner notwithstanding, we opt to forego quickly dismissing the petition, and instead set ourselves upon the task of resolving the issues posed by the petition on their merits. We cannot fairly and justly ignore his plea about the sentence imposed on him not being commensurate to the wrong he committed. His plea is worthy of another long and hard look. If, on the other hand, we were to outrightly dismiss his plea because of the procedural lapses he has committed, the Court may be seen as an unfeeling tribunal of last resort willing to sacrifice justice in order to give premium to the rigidity of its rules of procedure. But the Rules of Court has not been intended to be rigidly enforced at all times. Rather, it has been instituted first and foremost to ensure justice to every litigant. Indeed, its announced objective has been to secure a ‘just, speedy and inexpensive disposition of every action and proceeding.’ This objective will be beyond realization here unless the Rules of Court be given liberal construction and application as the noble ends of justice demand. Thereby, we give primacy to substance over form, which, to a temple of justice and equity like the Court, now becomes the ideal ingredient in the dispensation of justice in the case now awaiting our consideration.

“The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such birthright without due process of law unless we shunt aside the rigidity of the rules of procedure and review his case.”

A married woman is not prohibited from continuously using her maiden name once she is married. When a woman marries, she does not change her name but only her civil status.

RA 8239 does not prohibit a married woman from using her maiden name in her passport. The DFA allows a married woman who applies for a passport for the first time to use her maiden name. She is not required to adopt her husband's surname.

But once a married woman uses her married name in her passport, she cannot be allowed to change her family name at will. This prohibition prevents confusion and inconsistency in the records of passport holders.

[2] Article 370 of the New Civil Code of the Philippines (law on surnames for married women)

Background facts:

[1] Maria Virginia V. Remo is a Filipino citizen married to Francisco R. Rallonza. The following entries appear in her passport: “Rallonza” as her surname, “Maria Virginia” as her given name, and “Remo” as her middle name.

Virginia’s passport was due to expire on October 27, 2000. She applied for her passport’s renewal with the Department of Foreign Affairs (DFA) office in Chicago, Illinois, USA. She also requested that her maiden name and surname be used in the replacement passport.

[2] The DFA office in Chicago and later on DFA Sec. Domingo Siason denied Virginia’s request.

DFA Sec. Siason, through an undersecretary, stated:

This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husband’s name. Use of maiden name is allowed in passport application only if the married name has not been used in previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of marriage, divorce and death of the husband. Ms. Remo’s case does not meet any of these conditions.

[3] Virginia appealed to the Office of the President but her appeal was denied. The OP stated:

Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 “offers no leeway for any other interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name for passport purposes.”

[4] Virginia then filed a petition for review of the OP’s decision with Court of Appeals. The CA denied the petition, stating:

Virginia’s marriage to Francisco Rallonza has not been annulled or declared void. A divorce decree has also not been granted to them.

Virgina cannot therefore simply revert to her maiden name in the replacement passport after she had adopted her husband’s surname in her old passport.

Virginia subsequently filed a petition for review of the CA’s ruling with the Supreme Court. She claimed that no law prohibits her from using her maiden name and that Section 5(d) of RA 8239 conflicts with Article 370 of the New Civil Code of the Philippines (NCC).

Issue

Should Virginia be allowed to use her maiden surname in the replacement passport?

Supreme Court ruling

[1] “A married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 NCC. She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage.”

“A married woman is not prohibited from continuously using her maiden name once she is married. When a woman marries, she does not change her name but only her civil status.”

[2] The law governing passport issuance is RA 8239. Section 5(d) “limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport.” These instances are death of husband, divorce decree, annulment or nullity of marriage.

Article 370 of the Civil Code and Section 5(d) of RA 8239 do not conflict with one another. RA 8239, including its implementing rules and regulations, does not prohibit a married woman from using her maiden name in her passport. In fact, in recognition of this right, the DFA allows a married woman who applies for a passport for the first time to use her maiden name. Such an applicant is not required to adopt her husband's surname.

[3] Virginia “would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport.”

[4] If Virginia’s request to use her maiden surname in the replacement passport is granted, “nothing prevents her in the future from requesting to revert to the use of her husband’s surname.”

“Unjustified changes in one’s name and identity in a passport cannot be allowed. Undue confusion and inconsistency in the records of passport holders will arise.”

For passport issuance purposes, a married woman whose marriage is subsisting, may not change her family name at will.

Issue: How can an employee file a labor case for constructive dismissal and at the same time continue reporting for work?

Ruling: Constructive dismissal does not occur when the employee stops reporting for work, but when the employer commits acts that make continued employment intolerable.

In difficult times, an employee may have no choice but to continue working despite the employer’s abuses and even while a labor case is pending between them. This should not be taken against the employee.

Definition: “Constructive dismissal” is quitting or cessation of work

because continued employment is rendered impossible, unreasonable or unlikely;

when there is a demotion in rank or a diminution of pay and other benefits;

if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment;

when the employee involuntary resigns due to the harsh, hostile, and unfavorable conditions set by the employer.

The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his employment/position under the circumstances. (Gan vs. Galderma Philippines, G.R. No. 177167, January 17, 2013)

Background facts

[1] The Orchard Golf and Country Club (Orchard), operates two golf courses in Dasmariñas, Cavite for its members and their guests. Orchard also has a swimming pool, bowling alley, cinema, fitness center, courts for tennis, badminton and basketball, restaurants, and function rooms.

Amelia R. Francisco (Francisco) was employed as Club Accountant to head Orchard’s General Accounting Division and the four divisions under it. Each of these four divisions has its own Supervisor and Assistant Supervisor. As General Accounting Division head, Francisco reported directly to Orchard’s Financial Comptroller, Jose Ernilo P. Famy (Famy).

Tomas B. Clemente III (Clemente) is Orchard’s General Manager while Ma. Irma Corazon A. Nuevo (Nuevo) is the General and Administrative Manager.

[2] Famy’s actions against Francisco:

(a) suspended Francisco without pay for a period of 15 days for her alleged failure to prepare a letter to SGV, Orchard’s internal auditor, despite repeated verbal and written reminders;

(b) temporarily transferred Francisco to the Cost Accounting Section, without diminution in salary and benefits, while Francisco’s charges against him for fraudulent and negligent acts were being investigated;

(c) asked for investigation into Francisco’s insubordination, for her alleged unauthorized change of day-off from July 30 to August 4, 2000, and for being absent on that date despite disapproval of her leave/offset application;

(d) asked Francisco in a memorandum dated August 5, 2000 to explain the charges of insubordination, negligence, inefficiency and violation of work standards relative to the unauthorized change of day-off and disapproved offset/ leave.

[3] Francisco’s reactions:

(a) She accused Famy of waging a personal vendetta against her because she sought Orchard’s inquiry into Famy’s fraudulent and negligent acts. She also said that her transfer to the Cost Accounting Section was humiliating and demeaning, and that it constituted constructive dismissal.

Francisco also threatened to take legal action or seek assistance from Orchard members to insure that Famy’s impropriety was investigated.

(c) On August 11, 2000, Francisco filed a Complaint for illegal dismissal against Orchard, impleading Famy, Clemente and Nuevo as additional respondents. The case was docketed as NLRC Case No. RAB-IV-812780-00-C. She asked, among others, for damages and attorney’s fees.

[4] Events after Francisco filed her illegal dismissal case with the NLRC:

(a) On August 16, 2000, Francisco received another memorandum requiring her to explain why she should not be charged with betrayal of company trust. The memorandum alleged that a club member was seen distributing copies of Francisco’s letter to Orchard’s Chairman of the Board of Directors.

(b) On August 18, 2000, Francisco submitted her written explanation to the charges.

(c) On August 19, 2000, Clemente handed Francisco a Notice of Disciplinary Action dated August 16, 2000 relative to her July 30, 2000 unauthorized change of day-off and her August 4, 2000 unauthorized leave/absence. Francisco was suspended for another fifteen days, or from August 21 to September 6, 2000.

[5] Events after Francisco’s suspension:

(a) Francisco amended her illegal dismissal Complaint to one for illegal suspension. Meanwhile, she continued to report for work.

(b) On September 7, 2000, or a day after serving her suspension, Francisco received a September 6, 2000 memorandum from Nuevo and approved by Clemente. She was placed on forced leave with pay for 30 days, or from September 7, 2000 up to October 11, 2000, allegedly because the case filed against her has strained her relationship with her superiors.

(c) Francisco wrote a letter to Nuevo seeking clarification as to what case was filed against her. Nuevo immediately sent a reply memorandum stating that the case referred to her alleged “betrayal of company trust.”

(d) After the expiration of her forced leave, or on October 12, 2000, Francisco reported back to work.

This time Francisco was handed an October 11, 2000 memorandum from Clemente informing her that she has been permanently transferred, without diminution of benefits, to Orchard’s Cost Accounting Section effective October 12, 2000. The transfer was due to strained relations between her and Famy and the pending evaluation of her betrayal of company trust charge. Francisco’s position at the Cost Accounting Section was to remain under Famy’s direct supervision.

(e) In an October 13, 2000 memorandum to Clemente, Francisco protested her permanent transfer, claiming that it was made in bad faith. She also bewailed Clemente’s inaction on her July 5, 2000 letter charging Famy with irregularities relative to BIR tax payments.

Because of her transfer, Francisco once more amended her Complaint to include illegal/constructive dismissal. In her prayer, she sought to be reinstated to her former position as Club Accountant.

[6] Labor Arbiter rules against Francisco

Labor Arbiter Enrico Angelo C. Portillo issued a Decision dated August 23, 2001 dismissing Francisco’s Complaint for lack of merit. The Arbiter noted the “belligerence and animosity” between Francisco and Famy. He dismissed Francisco’s charges as nothing more than attempts to get back at Famy for his reproach at her failure to draft the SGV letter.

The Arbiter further upheld Francisco’s two suspensions as valid exercises of Orchard’s management prerogative. He also found Francisco’s claim of constructive dismissal to be baseless. On the contrary, he found Francisco’s transfer as necessary and in furtherance of Orchard’s interests. He also noted that the transfer was lateral, or to a position of the same rank and pay scale based on Orchard’s Organizational Chart.

[7] NLRC overrules the Labor Arbiter

While Francisco’s suspensions were valid, her subsequent permanent transfer on the ground of strained relations to the Cost Accounting Section on October 12, 2000 had no just cause. It resulted in Francisco’s demotion, since the position of Cost Controller was merely of a supervisory character while the position of Club Accountant was of managerial rank. Francisco held the rank of “Manager 3” as Club Accountant, while the Cost Controller is only a Supervisor position and is precisely under the direct supervision and control of the Club Accountant. This unwarranted demotion is equivalent to constructive dismissal.

The NLRC added that “strained relationship” is not a valid ground for termination of employment under the Labor Code. It ordered Francisco’s reinstatement to her former position as Club Accountant and awarded her attorney’s fees in the amount of P50,000.00. But the NLRC absolved Famy, Nuevo and Clemente of wrongdoing.

Francisco moved for partial reconsideration of the NLRC’s Resolution with respect to its ruling declaring her suspensions as valid and the denial of her claim for damages. The NLRC denied her motion.

[8] The Court of Appeals affirms NLRC ruling

Orchard went up to the CA through a Petition for Certiorari while Francisco no longer took issue with the denial of her motion.

In its January 25, 2007 Decision, the CA sustained the NLRC ruling. It held that while Orchard had the right to transfer Francisco from one office to another within the club, there should be no demotion in rank, salary, benefits, and other privileges. The CA added that the right may not be used arbitrarily to rid the employer of an undesirable worker. Proper notification and an opportunity to be heard or contest the transfer must be given to the employee whose transfer is sought.

Francisco was notified only of Orchard’s decision to permanently transfer her, without giving her the opportunity to contest the transfer. The CA characterized Francisco’s permanent transfer as a demotion in the guise of a lateral transfer.

Orchard filed a Petition for Review with the Supreme Court questioning the CA’s decision.

Supreme Court ruling: Francisco was constructively dismissed

Francisco’s transfer to the position of Cost Controller was without valid basis and that it amounted to a demotion in rank. Hence, there was constructive dismissal.

The cause of Francisco’s temporary transfer on July 20, 2000 was her pending complaint against Famy.

When Francisco was placed on forced leave and transferred to the Cost Accounting Section, not once was Francisco given the opportunity to contest these company actions taken against her.

Just when one penalty has been served by Francisco, another would instantaneously take its place. And all these happened even while the supposed case against her, the alleged charge of “betrayal of company trust”, was still pending and remained unresolved.

Not even the claim that her relations with her superiors have been strained could justify Francisco’s transfer to Cost Accounting Section. Indeed, it appears that her charge was never resolved. And if Famy, Nuevo and Clemente truly believed that their relations with Francisco have been strained, then it puzzles the Court why, despite her transfer, she continues to remain under Famy’s direct supervision.

For this reason, Francisco’s July 20, 2000 temporary transfer and her October 12, 2000 permanent transfer to Cost Accounting Section must be invalidated. For one, there was no valid reason to temporarily transfer Francisco to Cost Accounting Section on July 20, 2000. She had already served her penalty for her failure to draft the SGV letter, through the 15-day suspension period which she just completed on July 20, 2000. Secondly, the transfer was not even rooted in any new infraction she is accused of committing. There was thus an absolute lack of basis for her July 20, 2000 temporary transfer.

As for her October 12, 2000 permanent transfer, the same is null and void for lack of just cause. Also, the transfer is a penalty imposed on a charge that has not yet been resolved. Definitely, to punish one for an offense that has not been proved is truly unfair; this is deprivation without due process. Finally, the Court sees no necessity for Francisco’s transfer; on the contrary, such transfer is outweighed by the need to secure her office and documents from Famy’s possible intervention on account of the complaint she filed against him.

The fact that Francisco continued to report for work does not necessarily suggest that constructive dismissal has not occurred, nor does it operate as a waiver. Constructive dismissal occurs not when the employee ceases to report for work, but when the unwarranted acts of the employer are committed to the end that the employee’s continued employment shall become so intolerable. In these difficult times, an employee may be left with no choice but to continue with his employment despite abuses committed against him by the employer, and even during the pendency of a labor dispute between them. This should not be taken against the employee. Instead, we must share the burden of his plight, ever aware of the precept that necessitous men are not free men.

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Color or black and white?

I took these pictures when I was a journalism teacher and yearbook adviser in Rizal High School in Pasig City, Metro Manila, Philippines from 1984 to 1995. Rizal High School was once credited in the Guinness Book of World Records as the world’s largest high school. Hello to all Rizalians!

Getting married? Take a look at what “covenant marriage” is all about

“Marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both live. We have chosen each other carefully and have received premarital counseling on the nature, purposes and responsibilities of marriage. We understand that a covenant marriage is for life.”